United States 

Department of 

Agriculture

Animal and 

Plant Health 

Inspection 

Service

January 2012

Regulatory Impact Analysis & Analysis in 

Support of Certification that the Rule will not 

have a Significant Economic Impact on a 

Substantial Number of Small Entities

Proposed Rule

APHIS-2007-0086

RIN 0579- AD50

Forfeiture Procedures under the Endangered 

Species Act and the Lacey Act Amendments

Policy & Program Development

Policy Analysis & Development
i

Summary

APHIS is amending the regulations that set forth its forfeiture procedures with respect to 

enforcement of the Endangered Species Act, the Lacey Act, and the Convention on International 

Trade in Endangered Species of Wild Fauna and Flora (CITES). APHIS and the Department of 

Homeland Security’s Bureau of Customs and Border Protection are responsible for initiating 

seizures of unlawfully imported plants and plant products at U.S. ports of entry.

Among other amendments, the proposed rule would change the basis for appraising the 

value of seized property, increase the monetary threshold of seized items requiring judicial 

forfeiture from $10,000 to $15,000, provide for the assessment and recovery of the costs of 

transferring, storing, caring for and maintaining seized plants and plant products, and prohibit a 

violator from attempting to buy the unlawfully imported item if it is sold at auction by APHIS.

The proposed forfeiture provisions would be easier to understand by importers and the 

general public. Appraisal of seized property would be streamlined to simply using the value 

shown on the imported item’s invoice. The increase in the threshold value for judicial forfeiture 

would allow for more efficient use of U.S. Attorney resources. APHIS and U.S. taxpayers would 

be relieved of the financial burden associated with the transfer, storage, care, and maintenance of 

seized property by requiring the person whose act or omission of required information was the 

basis for the seizure to bear these costs.

Costs of the proposed rule would be minimal. Because the threshold for a case 

proceeding through judicial forfeiture would be raised from $10,000 to $15,000, there would be 

more cases proceeding through administrative forfeiture. However, any additional demands on 

administrative resources are expected to be manageable, and would not represent a net increase 
ii

in costs for the Federal government. Costs incurred with regard to the transfer, storage, care, and 

maintenance costs of seized property would be appropriately directed from the Federal 

government to persons responsible for violating the Endangered Species Act or Lacey Act.

Most of the establishments that may be affected by the proposed rule are considered 

small. However, the only entities affected would be those that violate the Endangered Species 

Act or the Lacey Act, such as by attempting to import illegal plants or submitting false records 

for plant or plant products that fall under the purview of the ES or Lacey acts. Based on this 

information, the Administrator of the Animal and Plant Health Inspection Service has 

determined that this action will not have a significant economic impact on a substantial number 

of small entities.
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Table of Contents

Summary.............................................................................................................................. i

Introduction......................................................................................................................... 1

Benefits of the Rule ............................................................................................................ 2

Costs of the Rule................................................................................................................. 3

Alternatives to the Rule ...................................................................................................... 4

Potential Impact on Small Entities...................................................................................... 4
1

Introduction

The Animal and Plant Health Inspection Service (APHIS) administers the provisions of 

the Endangered Species Act of 1973, as amended, and the Lacey Act Amendments of 1981, as 

amended, pertaining to plants and plant products.1 APHIS enforces these statutes and

implements the Convention on International Trade in Endangered Species (CITES) of Wild 

Fauna and Flora, by initiating seizures of unlawfully imported live plants and plant products at 

U.S. ports of entry.

When a CITES-regulated species is presented for import into the United States, it must be

accompanied by the required permit or certificate. If it is not, the commodity is subject to 

seizure by, and forfeiture to, the United States. APHIS and the Department of Homeland 

Security’s Bureau of Customs and Border Protection (CBP) initiate approximately 100 seizures 

each year for plants and plant products imported into the U.S. without the proper CITES 

documentation. Wood, wood products, medicinal items, and live plants constitute the bulk of 

property that has been seized in the past. 

In 2000, the Civil Asset Forfeiture Reform Act (CAFRA) was enacted to provide a more

just and uniform procedure for Federal civil forfeitures. APHIS is proposing to update its

regulations regarding forfeiture procedures under the Endangered Species Act and the Lacey Act 

in accordance with CAFRA. 

This rule would amend APHIS’ forfeiture regulations to increase the monetary threshold 

of seized items requiring judicial forfeiture from $10,000 to $15,000. This means that seized 

 

1 The Lacey Act makes it unlawful to import, export, transport, sell, receive, acquire, or purchase in interstate or 

foreign commerce certain plants taken in violation of the laws of a U.S. State or any foreign law that protects plants. 

The Lacey Act also makes it unlawful to make or submit any false record, account, or label for, or any false 

identification of any plant. In addition, certain plants and plant products must be accompanied at importation with a 

declaration providing, in part, the scientific name of the plant and where the plant was harvested. 
2

imported property with an estimated value of $15,000 or more would proceed through judicial 

forfeiture, while that valued at less than $15,000 would proceed through administrative 

forfeiture. APHIS is also proposing to amend its forfeiture regulations to provide for the 

assessment and recovery of the costs of transferring, storing, caring for and maintaining seized 

imported plants and plant products. The proposed rule would also prohibit a violator from 

attempting to buy the unlawfully imported and seized item if it is sold at auction by APHIS.

 Benefits and costs of the rule are examined in accordance with Executive Order 12866, 

and the benefits are expected to exceed the costs overall. Possible impacts on small entities are 

considered in accordance with the Regulatory Flexibility Act.

Benefits of the Rule

The expected benefits of this proposed rule would be several. The proposed forfeiture 

provisions would be easier to understand by importers and the general public. An example is the 

proposed revision of the procedure used to appraise the value of seized property. The current 

regulations state that if the property can be legally sold in the United States, its value will be 

determined by ascertaining the price at which the property or similar property in the ordinary 

course of trade is freely offered for sale at the time of appraisement. The regulations further state 

that if the property may not lawfully be sold in the United States, its value shall be determined by 

other reasonable means.

The proposed rule would streamline the appraisal process to simply using the value 

shown on the imported item’s invoice. In the uncommon event that an invoice is unavailable, the 

value of the property would be determined by ascertaining the price at which similar property is 

offered for sale at or as near as possible to the time and place of seizure. 
3

Another benefit of the proposed rule would be an increase in the threshold at which a 

case is referred to a U.S. Attorney’s Office for institution of judicial forfeiture. Currently, 

property having a retail value over $10,000 proceeds through judicial forfeiture. Under the 

proposed rule, that threshold value would be increased to $15,000, to account for inflation and to 

allow for more efficient use of U.S. Attorney resources. APHIS anticipates that more cases will

fall below the $15,000 threshold and, consequently, proceed through administrative forfeiture. 

Another benefit of the proposed rule would be the savings to APHIS from assessing the 

cost of transfer, storage, care, and maintenance of a seized imported plant or plant product 

directly to the person whose act or omission was the basis for the seizure. That person would be 

sent an itemized invoice for the amount of the expenses and instructions on the time and manner 

of payment. 

The proposed rule would also set forth requirements for the disposal of seized property. 

The provisions would prohibit the person responsible for the violation from receiving a benefit

from the disposal, such as by attempting to buy the unlawfully imported item if it is auctioned by

APHIS.

Costs of the Rule

Costs of the proposed rule would be minimal. Because the threshold for a case 

proceeding through judicial forfeiture would be raised from $10,000 to $15,000, there would be 

more cases proceeding through administrative forfeiture, which is less costly. Any additional 

demands on administrative resources are expected to be manageable, and would not represent a 

net increase in costs for the Federal government.

Costs incurred with regard to the transfer, storage, care, and maintenance of seized 

properties would be appropriately directed from the Federal government to persons responsible 
4

for violating the Endangered Species Act or Lacey Act. Historically, these kinds of costs vary 

from year to year (see table 1). They depend upon the number and the kind of the illegal 

shipments that have been seized rather than their value. APHIS’s appropriated funds are 

currently used to cover expenditures for transfer, storage and maintenance of seized goods. 

APHIS asks for the violators to be responsible for these expenses.

Table 1. APHIS expenses for transfer, storage and maintenance of seized illegal shipments (2005-10)

2005 2006 2007 2008 2009 2010

$180,000 $94,000 $64,000 $40,000 $40,000 $42,000

Source: APHIS, PPQ, RIPPS, PSB

Alternatives to the Rule

This rulemaking is required in order that APHIS’ forfeiture regulations are in compliance 

with The Civil Asset Forfeiture Reform Act of 2000. Alternatives to the proposed rule would be 

to not include one or more of its provisions. However, each of the rule’s revisions is expected to 

benefit the Agency and general public, including the change in how the value of seized property

would be determined, the increase in the monetary threshold for cases proceeding through 

judicial forfeiture, and the assessment of the costs of transfer, storage, care, and maintenance of 

seized property to the person responsible for the violation. 

Potential Impact on Small Entities

This section provides the basis, as required by the Regulatory Flexibility Act, for 

certification by the APHIS Administrator that the proposed rule, if promulgated, will not have a 

significant economic impact on a substantial number of small entities.

The Small Business Administration (SBA) has established guidelines for determining 

which entities are considered small. Plants and plant products such as fruits, vegetables, and 

nursery stock are imported into this country for commercial purposes, for research, for education, 
5

and by hobbyists and collectors. Therefore, the importers potentially affected by the proposed 

rule represent a broad cross-section of businesses, government and university research 

institutions, non-profit operations, and individuals. The Regulatory Flexibility Act does not 

address the activities of private individuals. 

Establishments that import plants and plant products are primarily categorized according 

to the North American Industrial Classification System (NAICS) within subsector 424, Merchant 

Wholesalers, Nondurable Goods. Importers either sell goods on their own account (import 

merchants) or arrange for the sale of goods owned by others (import agents and brokers). 

Examples of industries that may be affected by the proposed rule are Fresh Fruit and Vegetable 

Merchant Wholesalers (NAICS 424480), Packaged Frozen Food Merchant Wholesalers (NAICS

424420), Flower, Nursery Stock, and Florists’ Supplies Merchant Wholesalers (NAICS 424930) 

and, as importers of seeds, Farm Supplies Merchant Wholesalers (NAICS 424910).

Businesses within these industries are considered small if they have 100 or fewer

employees. Table 1 shows the prevalence of small entities within these industries.

Table 2. Prevalence of small entities among industries that include importers that may be 

affected by the proposed rule, 2007 

Industry Number of 

Establishments

Number of 

Establishments

that operated the

entire Year

Number of 

Establishments 

with fewer than 

100 employees 

that operated the 

entire Year 

Small-entity

Establishments

as a percentage 

of those that 

operated the 

entire Year

Fresh Fruit and 

Vegetable 

Merchant 

Wholesalers

5,074 4,437 4,207 94.8%

Packaged Frozen 

Food Merchant 

Wholesalers

3,502 3,204 2,988 93.3%
6

Flower, Nursery 

Stock, and 

Florists’ Supplies 

Merchant 

Wholesalers

4,218 3,601 3,534 98.1%

Farm Supplies 

Merchant 

Wholesalers

7,738 7,199 7,138 99.2%

Source: U.S. Census Bureau, 2007 Economic Census, 

http://factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=&-fds_name=EC0700A1&-

_skip=3600&-ds_name=EC0742SSSZ2&-_lang=en

Note: The Small Business Administration’s small-entity standard is 100 or fewer employees.

Entities conducting research and experimental development on plants and plant products 

may also be affected by the proposed rule. Many of these entities are classified within Research 

and Development in Biotechnology (NAICS 541711) or Research and Development in the 

Physical, Engineering, and Life Sciences (except Biotechnology) (NAICS 541712). For both 

industry categories, the small-entity standard is 500 or fewer employees. According to the 2007 

Economic Census, small entities comprised 91 percent (1,977 of 2,167 establishments) and 92 

percent (9,700 of 10,551 establishments), respectively, of all entities within these industries that 

operated for the entire year.2 

Plants and plant products are also imported by entities classified as Museums (NAICS 

712110) or Zoos and Botanical Gardens (NAICS 712130). For both industries, the small-entity 

standard is annual revenue of not more than $7 million. In 2007, the average revenue of 

museums was about $2.0 million, and the average revenue of zoos and botanical gardens was 

about $4.9 million, well below the small-entity standard in both cases.

3

 

2 U.S. Census Bureau, 2007 Economic Census, http://factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=&-

fds_name=EC0700A1&-_skip=900&-ds_name=EC0754SSSZ2&-_lang=en 3 U.S. Census Bureau, 2007 Economic Census, http://factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=&-

fds_name=EC0700A1&-_skip=900&-ds_name=EC0754SSSZ2&-_lang=en
7

It is clear that most entities covered by the proposed rule are considered small, as most 

importers are considered small. However, the only entities affected would be ones that violate 

the Endangered Species Act or the Lacey Act, such as by attempting to import illegal plants or 

submitting false records for plant or plant product imports. The majority of the imports are 

consistent with these Acts. Based on this information, the Administrator of the Animal and Plant 

Health Inspection Service has determined that this action will not have a significant economic 

impact on a substantial number of small entities.